[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 12172

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus FAUSTO AGUERO ALVARADO,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:11

- cr

- 20026

- KMM

- 5

____________________ USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 1 of 162 Opinion of the Court 22

- 12172

Before L AGOA , A NDERSON , and J ULIE C ARNES , Circuit Judges.

PER CURIAM: Defendant Fausto Aguero Alvarado, a federal prisoner at FCI Bennettsville, appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the sentencing guidelines and his motion forcompassionate release pursuant to § 3582(c)(1)(A). The Government has filed a motion for summary affirmance. We find no errorin the district court’s rulings, and we conclude that summary affirmance is warranted. Thus, we G RANT the Government’s motion and AFFIRM the district court’s denial of both motions.

BACKGROUNDIn July 2013, Defendant was convicted by a jury of conspiring to distribute cocaine knowing that it would be imported into the United States, in violation of 21 U.S.C. §§ 959(a), 963, and 960(b)(1)(B). In its verdict, the jury expressly found that Defendant conspired to distribute cocaine “weighing five kilograms or more.” Five kilograms is the amount of cocaine necessary to impose the maximum penalty provide d for in 21 U.S.C. § 960(b), including aminimum term of ten years and a maximum term of life imprisonment. See 21 U.S.C. § 960(b)(1)(B). According to the undisputed facts in the PSR, Defendant’s conviction arose from an investigation conducted by the Drug Enforcement Agency, the United States Department of Homeland USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 2 of 1622

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Security (“DHS”), and Colombian law enforcement in 2009 concerning the sale of weapons to a terrorist organization in Colombia in exchange for cocaine. During the investigation, Defendant i nformed a Confidential Informant (“CI”) that he had “M

- 60 machine guns, AK

- 47s, Red Eye surface

- to

- air missiles” and other weapons manufactured in the United States that were available to be sold in Honduras and Nicaragua. Defendant also told the CI that he had a connection with a Nicaraguan national named Franklin McField

Bent who ran a drug trafficking organization in Colombia that transported drugs throughout Central America and into Mexico.The authorities subsequently learned that Defendant had introduced McField

- Bent to a woman named Lina Grandet who purportedly had between 1,000 and 1,500 kilograms of cocaine in Colombia available to ship to Honduras. McField

- Bent arranged to send $20,000 to Grandet to initiate a purchase of the cocaine, but the pu rchase was not completed.Later in the investigation, the CI met with and advised Defendant that he was trying to acquire weapons for AutodefensasUnidas de Colombia, a Colombian organization that DHS has identified as an armed and violent foreign terror ist group. After the CI made a down payment of $3,000 to one of Defendant’s associates for weapons to be provided in the future, Defendant introduced the CI to McField

- Bent. Thereafter, Defendant served as a middleman or broker for several deals between the CI and McField

- Bent involving the exchange of weapons manufactured in the United States for hundreds of kilograms of cocaine located in Colombia. USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 3 of 164 Opinion of the Court 22

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Evidence recovered by Colombian police indicates that one of the deals involved 442 kilograms of cocaine and another, separate deal involved 400 kilograms of cocaine. These quantities are in additionto the 1,000 to 1,500 kilograms of cocaine involved in the deal between McField

- Bent and Grandet referenced above. Based on these quantities, the PSR concluded that Defendant was accountable for “well over 150 kilograms of cocaine.” The PSR assigned Defendant the highest base offense level of 38 pursuant to § 2D1.1(a)(5) of the sentencing guidelines, which at the time applied to an offense involving 150 kilogr ams or more of cocaine. The PSR added a 2

- level enhancement for obstructionof justice, resulting in a total offense level of 40. Defendant’s criminal history category was I, yielding a recommended guidelines range of 292 to 365 months in prison, with a ten

- year minimum term of imprisonment and a maximum term of life pursuant to 21 U.S.C. § 960(b)(1)(B)(ii). Defendant stated at his sentencing hearing that he did not have any objections to the PSR’s description of his offense conduct or to its calculatio ns. 1 Consistent with the recommendations in the PSR, the district court sentenced Defendant to 360 months in prison, to be followed by five years of supervised release. This

1 Defendant initially asserted two objections to the PSR: (1) that the PSR incorrectly stated that Defendant received $3,000, money Defendant claimed was given to his co

- defendant McField

- Bent, and (2) that the PSR improperly applied the 2

- level obstructi on of justice enhancement. Defense counsel represented at the sentencing hearing that those objections had been resolved. USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 4 of 1622

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Court affirmed Defendant’s conviction and sentence on direct appeal. See Unite d States v. Alvarado , 808 F.3d 474, 496 (11th Cir.2015). In its opinion, the Court specifically referenced deals involving Defendant that included 1,000 kilograms and 400 kilograms of cocaine, respectively. See id. at 480

– 81. In March 2019, Defendant fi led a pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782 to the s entencing guidelines. In support of his motion, Defendant argued that his base offense level of 38, the level that applied to 150 kilograms of cocaine at t he time of his original sentencing, shouldbe reduced by two levels to 36 under Amendment 782, a retroactively applicable amendment to the sentencing guidelines that lowered the base offense level for offenses involving at least 150 kilograms but less than 450 kilograms of cocaine. Defendant claimedthe guidelines adjustment would result in a recommended guidelines range of 235 to 293 months in prison for his offense. In July 2020, Defendant filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). As amended by the First Step Act of 2018 (the “First Step Act”), that statute authorizes a district court to reduce a defendant’s sentence if the reduction is warranted by “extraordinary and compelling reasons” and if it is
consistent wit h the sentencing factors set forth in 18 U.S.C. § 3553(a) and the applicable guidelines policy statements. See 18 USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 5 of 166 Opinion of the Court 22

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U.S.C. § 3582(c)(1)(A)(i). 2 In support of his motion for compassionate release, Defendant argued that he was vulnerable to contracting COVI D

- 19 because of the “poor sanitary conditions at his facility” and because of the many cases of COVID

- 19 among BOP staffand inmates. Additionally, Defendant argued that he had a “flawless” inmate disciplinary record and that he had been involved in
conti nuous programming while in prison and at one point had acted heroically to “sav[e] the life of an employee of the UnitedStates Government.” Finally, Defendant emphasized his rehabilitation efforts and he claimed that he no longer posed any danger to the public.
The district court denied Defendant’s motions for a sentencereduction and for compassionate release in a single order. Regarding the Amendment 782 motion, the court cited undisputed facts in the PSR indicating that Defendant was accountable for at least 1,842 kilograms of cocaine, which quantity

- finding triggered the same base offense level of 38 even when one applied Amendment 782. The court thus concluded that Defendant did not show he was entitled to a lower guidelines range under Amendm ent 782, as required to invoke § 3582(c)(2). As to compassionate release under§ 3582(c)(1)(A), the district court found that Defendant did not satisfy his burden of demonstrating extraordinary and compelling

2 Section 3582(c)(1)(A) also authorizes a sentence reduction under certain circumstances if “the defendant is at least 70 years of age” but it is undisputed that Defendant does not qualify for an age

- based sentence reduction. See 18 U.S.C. § 3582(c)(1)(A)(i i). USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 6 of 1622

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reasons for his release, as required under tha t provision. Alternatively, the court stated that the § 3553(a) factors weighed against compassionate release. Defendant appeals, arguing that the district court erred andabused its discretion when it denied his motion for a sentence reduction under § 3582(c)(2). As to his motion for compassionate release, Defendant essentially concedes that he does not qualify for relief under § 3582(c)(1)(A) based on any of the grounds this Court held in United States v. Bryant , 996 F.3d 1243 (11th Cir. 2021) can
sup port such relief

— that is, an inmate’s age, qualifying medical condition, or family circumstances. Instead, Defendant argues that the Court should abandon its precedent in Bryant and expand its definition of what qualifies as an extraordinary and compellin g reason justifying compassionate release under § 3582(c)(1)(A).
DISCUSSION

I. Standards of Review

We review de novo a district court’s legal conclusions about the scope of its authority to modify a sentence under 18 U.S.C. § 3582(c)(2). United States v. Caraballo

- Martinez , 866 F.3d 1233,1238 (11th Cir. 2017). Assuming the district court has such authority, we review the court’s decision to grant or deny a sentence reduction under § 3582(c)(2) only for abuse of discretion. Id. Similarly, we review de novo whether a defendant is eligible for compassionate release pursuant to § 3582(c)(1)(A) and, if eligibility is estab lished, we review the denial of a motion for compassionate USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 7 of 168 Opinion of the Court 22

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release for abuse of discretion. United States v. Giron , 15 F.4th 1343, 1345 (11th Cir. 2021). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” United States v. Harris , 989 F.3d 908, 911

– 12 (11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC , 942 F.3d 1259, 1267 (11th Cir. 2019) (quotation marks omitted))

. Summary disposition of an appeal is appropriate when “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appea l is frivolous.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). 3 This Court has used summary disposition to resolve appeals that do not warrant extended discussion.

II. Defendant’s Motion for a Sentence Reduction Under 18 U.S.C. § 3 582(c)(2) Defendant argues that the district court erred when it denied his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the sentencing guidelines, which wasimplemented after Defendant was sentenced. Amendment 782 reduced by two levels the base offense level applicable to certain drug offenses under § 2D1.1(c) of the guidelines. See Hu ghes v. United

3 Decisions of the United States Court of Appeals for the Fifth Circuit issued before October 1, 1981, are binding on this Court. Bonner v. City of Prichard
, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 8 of 1622

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States , 138 S. Ct. 1765, 1774 (2018). Of relevance here, Amendment 782 lowered the base offense level for offenses involving at least 150 kilograms but less than 450 kilograms of cocaine to 36, and it reserved the highest base offense level of 38 for offenses involving 450 kilograms or more of cocaine. See U.S.S.G. App. C, Amend. 782 (2014). As noted, the PSR assigned Defendant a base offense level of 38, which at the time of Defendant’s sentencing applied to offenses involving at least 15 0 kilograms of cocaine. See U.S.S.G. §2D1.1(c) (2013). Defendant contends that, per his § 3582(c)(2) motion, the district court should have retroactively applied Amendment 782, lowered his base offense level from 38 to 36, recalculated his guidelines ra nge, and reduced his sentence accordingly. A district court’s authority to modify a prison sentence “is narrowly limited by statute.” United States v. Phillips , 597 F.3d 1190, 1194

– 95 (11th Cir. 2010). Section 3582(c)(2) provides for such authority under certain circumstances when a defendant was “sentenced to a term of imprisonment based on a [guidelines] range that has subsequently been lowered.” 18 U.S.C. § 3582(c)(2). See also United States v. Hamilton , 715 F.3d 328, 336

– 37 (11th Cir. 2013) (ex plaining the governing principles applicable to a §3582(c)(2) motion for a sentence reduction). To authorize a sentence reduction, an amendment to the guidelines must be listed in § 1B1.10 of the guidelines as retroactively applicable, and the amendment must in fact result in a lower sentencing range than the range upon which the defendant’s sentence was based. See Hamilton , 715 F.3d at 337 (noting that a sentence reduction is not USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 9 of 1610 Opinion of the Court 22

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authorized by § 3582(c)(2) “if the amendment does not have the effect of l owering the defendant’s applicable guidelines range” (citation and quotation marks omitted)). Assuming both of those requirements are met, the district court still must exercise its discretion to determine whether a sentence reduction is warranted based

o n the sentencing factors of 18 U.S.C. § 3553(a), as well as any applicable guidelines policy statements. See id. Applying the principles set out above, a two

- step analysis governs a defendant’s motion for a sentence reduction under § 3582(c)(2). See U nited States v. Bravo , 203 F.3d 778, 780 (11thCir. 2000). First, the district court must determine whether a retroactively applicable amendment to the sentencing guidelines results in a lower guidelines range for the defendant, thus making him eligible f or a reduced sentence. See Hamilton , 715 F.3d at 337. In making that determination, the district court must leave intact “all of its previous factual decisions”

— including any drug quantity findings. See id. (citation and quotation marks omitted). See a lso United States v. Jackson, 58 F.4th 1331, 1336 (11th Cir. 2023) (reaffirming the rule in this circuit that a district court, when considering a First Step Act motion, is bound by prior fact findings

— including judge

- made drug quantity findings that trigg er penalties later modified by the Act). As the § 3582(c)(2) movant, the defendant has the burden at this stage of showing, based on those findings,that he would have received a lower guidelines range if the amendment “had been in effect at the time of h is original sentencing.” Hamilton , 715 F.3d at 341. Next, and assuming the defendant has USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 10 of 1622

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shown he is eligible for a sentence reduction under § 3582(c)(2), the court must decide at the second stage of the analysis “whether, in its discretion, it will elec t to impose the newly calculated sentence under the amended guidelines or retain the original sentence” afterconsidering the pertinent § 3553(a) sentencing factors and any applicable guidelines policy statements. See Bravo , 203 F.3d at 781. Here, the di strict court correctly found at the first stage of the analysis that Defendant is not eligible for a sentence reduction under § 3582(c)(2). As the court acknowledged, Amendment 782 is retroactively applicable per § 1B1.10 of the guidelines. See U.S.S.G. § 1B1.10(d). Nevertheless, Defendant failed to demonstrate that his offense involved less than 450 kilograms of cocaine, such that his base offense level would be lower under Amendment782 than the level that was applied at his sentencing. On the contrar y, the unobjected to

— and thus undisputed

— facts in the PSRshow that Defendant’s offense involved a minimum of 1,842 kilograms of cocaine. See United States v. Davis , 587 F.3d 1300, 1303

– 04 (11th Cir. 2009) (holding that the defendant was “deemed to have admitted, for sentencing purposes, the facts in the PS[R] he did not object to clearly and specifically at sentencing” and that the district court was “permitted to m ake factual findings based on theundisputed statements in the PS[R]” when ruling on the defendant’s § 3582(c)(2) motion for a sentence reduction). As such, Defendant’s base offense level under Amendment 782 would be 38, the same base offense level applie d at his sentencing. See U.S.S.G. App. C, Amend. 782 (2014). Accordingly, the district court was not USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 11 of 1612 Opinion of the Court 22

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authorized by § 3582(c)(2) to reduce Defendant’s sentence and itclearly did not err when it denied Defendant’s motion for a sentence reduction under tha t provision. See Hamilton , 715 F.3d at
337. The only substantive argument Defendant makes in support of his appeal as to the § 3582(c)(2) issue is that he was sentenced based on “uncharged quantities” of drugs, in contravention to Alleyne v. United Sta tes , 570 U.S. 99 (2013). Alleyne has no relevance to Defendant’s case. In Alleyne , the Supreme Court held that“[f]acts that increase the mandatory minimum sentence are . . . elements and must be submitted to the jury and found beyond a reasonable doubt. ” Id. at 108. Here, there is no dispute that Defendant’s mandatory minimum was based on the jury’s finding that he conspired to distribute cocaine “weighing five kilograms or more.” See 21 U.S.C. § 960(b)(1)(B). Further, the Court’s holding in Alleyne derives from a criminal defendant’s Sixth Amendment right to a jury trial. See Alleyne , 570 U.S. at 104. The Supreme Court has made it clear that the sentence modification procedures of § 3582(c)(2) “are not constitutionally compelled” and thus “do not
i mplicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt.” Dillon v. United States , 560 U.S. 817, 828 (2010).In short, the district court did not err when it denied Defendant’s motion for a reduced sentence u nder § 3582(c)(2), and the Government’s argument to that effect clearly is correct as a matter of law. See Groendyke Transp., Inc. , 406 F.2d at 1162. The USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 12 of 1622

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Government’s motion for summary affirmance is thus GRANTED as to this issue, and the district court’ s order denying the motion is AFFIRMED

. III. Compassionate ReleaseDefendant also argues that the district court erred by denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). As amended by the First Step Act, § 3582(c)(1)(A) authorizes the district court to grant a defendant’s motion for compassionate release if: (1) “extraordinary and compelling reasons warrant” such relief and (2) the defendant’s release is consistent with the sentencing factors of § 3553(a) and the “applicable polic y statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The relevant policy statement, found in U.S.S.G. § 1B1.13, echoes the statutory requirements, stating that a district court may grant a defendant’s motion for compassionate release “if, after considering the factors set forth in . . . § 3553(a),” the courtdetermines that: (1) “[e]xtraordinary and compelling reasons warrant” the defendant’s release and (2) “[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” See U.S.S.G. § 1B1.13. See also United States v. Bryant , 996 F.3d 1243, 1248 (11th Cir. 2021) (“1B1.13 is an applicable policy statement for all [§ 3582(c)(1)(A)] motions[.]”); United States v. Tink er , 14 F.4th 1234, 1237 (11th Cir.2021) (listing three conditions that are necessary for a sentence reduction under § 3582(c)(1)(A): support in the § 3553(a) factors, USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 13 of 1614 Opinion of the Court 22

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extraordinary and compelling reasons, and adherence to U.S.S.G. § 1B1.13’s policy state ment). The applicable guidelines policy statement, cited above,identifies three extraordinary and compelling reasons that can authorize a court to grant a motion for compassionate release under § 3582(c)(1)(A). See U.S.S.G. § 1B1.13
, cmt. n.1(A)

- (C). Fi rst, a defendant’s medical condition can constitute an extraordinary and compelling reason for release if the defendant can show that he is suffering either from a “terminal illness” or a “serious physical or medical condition” that “substantially diminish es [his] ability . . . to provide self

- care” in prison and “from which he . . . is not expected to recover.” U.S.S.G. § 1B1.13
, cmt. n.1(A). Second, release is permitted under certain circumstances if the defendant is at least 65 years old. See U.S.S.G. § 1B1.13
, cmt. n.1(B). And finally, a defendant’s family circumstances can create an extraordinary and compelling reason for release based on the “death or incapacitation of the caregiver of the defendant’s minor child” or the “incapacitation of the defe ndant’s spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.” U.S.S.G. § 1B1.13
, cmt. n.1(C). The policy statement also contains a catch

- all provision that allows the Bureau of Prison s(“BOP”) to determine that there are other extraordinary and compelling reasons for a particular defendant’s release, but this Court has held that only the BOP

— as opposed to the court

—has the authority to determine that release is warranted under that pro vision. See Bryant , 996 F.3d at 1263 (“We cannot replace the phrase ‘[a]s USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 14 of 1622

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determined by the Director of the [BOP]’ with ‘as determined by a district court.’”).
Defendant does not demonstrate

— or even argue

— that he is eligible for compassionate release b ased on any of the reasons set out above. Instead, he argues for release under § 3582(c)(1)(A) as a result of: (1) his susceptibility to COVID

- 19 based on the poor sanitary conditions of prison, (2) his “flawless” discipline record; (3) his heroic action saving the life of an employee of the United States Government, and (4) his rehabilitation. This Court held in Bryant that relief can only be granted under § 3582(c)(1)(A) based on one of the reasons expressly set out in the applicable guidelines policy

s tatement

— that is, a qualifying medical condition, advanced age,or family circumstances requiring the defendant to act as a caretaker to a minor child, spouse, or registered partner. See id. at 1265 (“Because [the defendant’s] motion does not fall within any of the reasons that 1B1.13 identifies as extraordinary and compelling, thedistrict court correctly denied his motion for a reduction of his sentence.” (quotation marks omitted)). The factors cited by Defendant do not qualify. As such, summary affirm ance is warranted because Defendant failed to establish extraordinary and compelling reasons to justify his compassionate release.Defendant essentially concedes that his compassionate release motion is not viable under Bryant , but he urges the Court to

r econsider and vacate the panel opinion in Bryant based on precedent from other circuits and district courts around the country. Defendant’s argument is precluded by this Court’s prior panel USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 15 of 1616 Opinion of the Court 22

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precedent rule. See In re Lambrix , 776 F.3d 789, 794 (11th Cir. 2015). Under that rule, “a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court” or by this Court sitting en banc

. Id. Because Bryant has not been overtu rned by the Supreme Court or this Court sitting en banc , this Court is bound by it. Defendant’s argument that we should disregard Bryant is thus clearly unavailing.

CONCLUSION As the movant, Defendant had the burden of establishing his eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) and compassionate release under 18 U.S.C. § 3582(c)(1)(A). See Hamilton , 715 F.3d at 337. The district court correctly held that Defendant failed to meet that burden here. The Government’s motion for summary affirmance is thus GRANTED , and the court’s order denying both Defendant’s motion for a sentence reduction under § 3582(c)(2) and his motion for compassionate release under § 3582(c)(1)(A) is AFFIRMED

. USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 16 of 16